HND商法导论Outcome2 案例答案.doc

Case study 1Samir sees a set of golf clubs displayed in a shop window for 500. He enters the shop and states he will take the clubs. The shopkeeper however says the clubs are no longer for sale. Samir is demanding that he be sold the clubs and at the price displayed. Identify the essential requirements of a contract and discuss whether a contract exists here.A contract is an agreement between parties having the capacity to make it, in the form demanded by the law, to perform, on one side or both, acts which are not trifling, indeterminate, impossible or illegal, creating an obligation enforceable in a court of law. A valid contract has three essential features: there must be a agreement on all material aspects; at least two contracting parties and legal obligations.A contract consists of an offer and an acceptance. If there is no offer in the first place then there can be no contract. The basic elements of a contract include an offer and an acceptance.In the case Samir sees a set of golf clubs displayed in a shop window for 500. He enters the shop and states he will take the clubs. But shopkeeper says the clubs are no longer for sale. Samir is demanding that he be sold the clubs and at the price displayed. According to this case we can say that these is not exist a contract. In the case that a set of golf clubs are exhibited in a shop window, thus it is not an offer. Because the goods displayed in a shop window as a invitation to treat, we can know that goods displayed in a shop window (even when priced) are classed as a willingness to negotiate on the shops part. Invitations to treat also is considered to inquiry the price of goods, means a party to invite the other person to make offers. Different an offer, a willingness to negotiate only as prepared to make a contract of behavior on the issue who is not legally binding. The customer will make the offer to buy the goods which the shop are perfectly within their rights to refuse. The invitations to treat are not legally classed as offers and therefore cannot be accepted. Before the party who gave off the invitations to treat could not accept the other peoples offers they can revocation, and then the contract is not build. When Samir asked to buy the golf clubs the shopkeeper refused hin, and there was no acceptance. So when the shopkeeper refused Samir which is a set of golf clubs are not the good for sale, it just be used as ornament, and attracted the consumers interested. So an offer in this case is not found, either nor acceptance.A contract consists of an offer and an acceptance, we can know that there is on offer and there is on contract.Case study 2Tom is the top salesman for ABC Motors. He has been offered a job by a rival company but is concerned because there is a clause in his contract which prevents him from working for any other car company for five years. Tom is the top salesman because he regularly tells potential customers what they like to hear rather than the facts. He has done this in relation to ages of vehicles, odometer readings and vehicle service histories. Tom recently completed a deal to buy a vintage sports car for ABC Motors from Barry.ABC now discover that Barry (not his real name) had stolen the vehicle.Question 1 What is a restrictive covenant? Advise Tom as to the legality of the clause in his contract. You can refer to Bluebell Apparel Ltd v Dickinson (1980) on page 146Question 2How would you classify Toms statements to the customers and what are the possible consequences for Tom and ABC motors in relation to these statements? You can refer to Smith v Sim(1954) on page 161Question 3 What is the legal position with regard to the vehicle which Tom has purchased from Barry?You can refer to Morrison v Robertson(1908) on page 1531 Restrictive covenant is a agreement which restrict the party liberty to work and trade. Such contracts are VOID unless the restriction can be shown to be reasonable to both parties involved and to the general public. There are three types of restrictive covenants: contracts between employer and employee, contracts between sellers and purchaser of a business and solus agreements. For all three types, the party attempting to enforce the agreement must prove that it is reasonable to both parties concerned and to the general public. If they are unable to do this then the contract will be considered void and unenforceable. (from the text bookP142-142) This contract are legality, and the restriction was fair in this contract. Because the relationship of Tom and ABC motor is employer and employee, when enter employment and employee may agree to some restriction being placed on his future employment or trade. Later the employee may feel the restriction is unfair and therefore he may break it. In such circumstances it would be up to the employer take him to court and seek an interdict forbidding the employee to break the agreement. They will consider the factor the nature of the job the employee was doing(from the text book P142). If Tom worked for any other company within the validity period of the contract that he would be in a position to harm his ex employers. 2 The 4 main causes of error are: innocent misrepresentation, fraudulent misrepresentation, negligent misrepresentation and concealment of facts. And Toms statements to customers classify fraudulent misrepresentation,A false and material statement which induces a party to enter into a contract this is misrepresentation. Because he regularly tells potential customers what they like to hear rather than the facts and him without caring whether it is true or false. Fraudulent misrepresentation can lead a contract being made void if it involved these points,first is fraudulent misrepresentation causes error in the substantials. Second is the other party relied on the misrepresentation and it was a major influence on them entering the contract, third is the other party can offer restitutio in integrum. So the contracts between Tom and customers is void, he relied on the misrepresentation and it was a major influence on them entering the contract, thus customers can acquire compensation. Or cancel the contract or both of them.3 Tom brought a car from Barry,but Tom discovered that Barry had stolen the vehicle. And in this contract has a error which made the contract void, the Barry stolen the car but Tom did not know before him brought, so he can not get the cars ownership. An error concerning the identity of the parties. Barry stolen the car so he havent ownership of this car and sold car, therefore, he can not give ownership to Tom, and Tom does not get the car ownership actually. And in this case Tom can only lodge a claim to Barry.Case study 3Martina recently attended an auction for the first time. She was very keen(渴望的) on a particular painting and when the bidding commenced（开始） she got so carried away that she bid much more than she intended. Martina won the auction but with fees（费用） and commissions（佣金） added on to the price, she cannot pay the full amount for the painting. Question 1 What do you understand by the term breach of contract? Give two examples. Question 2 List the main remedies available for breach of contract. Question 3 What is the most appropriate remedy for the auctioneer（拍卖商） in this case?1、 Where one party fails to fulfil his or her legal obligation under a contract.(from the text book P183) example1 Tony and Jane have a contract where Tony will pay June $100 for her car and delivery. Tony pays the $100 but Jane fails to delivery.(from the text book P197)In this case study there has been a Breach of Contract by Jane as she has failed to delivery the car.Example2Shirley and Oliva have a contract where Shirley brought a cake from Oliva for her friend and asked Oliva sent the cake to her friend on 12th December 2012 , but on that day her friend did not receive the cake.In this case study there has been a breach od contract by Oliva as she failed to sent the cake.2、 If there is a breach of contract then the innocent party will have the right to seek a remedy for the breach.(from the text book P184)Damages as a remedy for breach of contract. The object of awarding damages to someone is to place them in the position they would have been in had the contract been completed.So damages are really awarded as compensation- if the party has actually lost money as a result of the breach then he will be awarded substantial or compensatory damages.In some cases no actually loss may have been incurred as a result of the breach. If is still possible that damages may be awarded for trouble and inconvenience-these are know as nominal damages.(from the text book P185)Specific implement as a remedy for breach of contractSpecific implement is to stop someone for acting in breach of contract. So specific implement may be positive-forcing someone who has been in breach to fulfil their obligations or negative -forcing someone who has been in breach to stop doing something. (from the text book P191-192)Rescission as remedy for breach of contract.Rescission means cancellation . With this remedy, the innocent party has the right to rescind(cancel) the contract if the other party has been guilty of a material breach of contract.The main factor to be considered is what is meant by a material of contract. If the breach is not material but only partial then the right of rescission does not exist.Many contracts contains a number of conditions, some of which are more important than others. If the contract specifically states that some are material then breach of these will mean that rescission can be taken as a remedy.(from the text book P193-194) The Defensive Remedies for breach od contractThere are two defensive remedies that can be taken by the party who is not in breach.Lien:If a person has possession(占有) of an article(物品) on which he ha